2017-2018 Bill 3352 Text of Previous Version (Feb. 9, 2017) - South Carolina Legislature Online

Indicates Matter Stricken

Indicates New Matter

COMMITTEE REPORT

February 8, 2017

H.3352

Introduced by Reps. W.Newton and Taylor

S. Printed 2/8/17--H.[SEC 2/9/17 1:31 PM]

Read the first time January 10, 2017.

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (H.3352) to amend the Code of Laws, 1976, by adding Section 123665 so as to create the Office of Freedom of Information Act Review, etc., respectfully

REPORT:

That they have duly and carefully considered the same and recommend that the same do pass with amendment:

Amend the bill, as and if amended, Section 30430(A)(1), as contained in SECTION 3, page 4, by deleting the item in its entirety and inserting:

/(1)AnyA person has a right to inspect or, copy, or receive an electronic transmission of any public record of a public body, except as otherwise provided by Section 30440, or other state and federal laws, in accordance with reasonable rules concerning time and place of access. This right does not extend to individuals serving a sentence of imprisonment in a state or county correctional facility in this State, in another state, or in a federal correctional facility; however, this may not be construed to prevent those individuals from exercising their constitutionally protected rights, including, but not limited to, their right to call for evidence in their favor in a criminal prosecution under the South Carolina Rules of Criminal Procedure. /

Renumber sections to conform.

Amend title to conform.

F. GREGORY DELLENEY, JR. for Committee.

[3352-1]

ABILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 123665 SO AS TO CREATE THE OFFICE OF FREEDOM OF INFORMATION ACT REVIEW WITHIN THE ADMINISTRATIVE LAW COURT, AND TO PROVIDE FOR THE DUTIES AND FUNCTIONS OF THE OFFICE; TO AMEND SECTION 123500, AS AMENDED, RELATING TO THE ADMINISTRATIVE LAW COURT, SO AS TO PROVIDE THE COURT, INCLUDING THE OFFICE OF FREEDOM OF INFORMATION ACT, IS CONSIDERED PART OF THE UNIFIED JUDICIAL SYSTEM FOR THE PURPOSES OF CERTAIN ETHICS, GOVERNMENT ACCOUNTABILITY, AND CAMPAIGN REFORM STATUTES; TO AMEND SECTION 30430, RELATING TO RIGHTS TO INSPECT PUBLIC RECORDS UNDER THE FREEDOM OF INFORMATION ACT, SO AS TO INCLUDE ELECTRONIC TRANSMISSIONS AMONG THE RECORD FORMATS AVAILABLE FOR INSPECTION, TO PROVIDE CERTAIN LIMITATIONS APPLICABLE TO PRISONERS, TO PROVIDE PUBLIC BODIES ARE NOT REQUIRED TO CREATE ELECTRONIC VERSIONS OF PUBLIC RECORDS TO FULFILL RECORDS REQUESTS, TO REVISE REQUIREMENTS CONCERNING FEES TO FULFILL RECORDS REQUESTS, AND TO REVISE THE MANNER FOR RESPONDING TO RECORDS REQUESTS; TO AMEND SECTION 30440, AS AMENDED, RELATING TO MATTERS EXEMPT FROM DISCLOSURE IN THE FREEDOM OF INFORMATION ACT, SO AS TO INCLUDE CERTAIN LAW ENFORCEMENT RECORDINGS; TO AMEND SECTION 30450, RELATING TO CATEGORIES OF MATTERS DECLARED TO BE PUBLIC INFORMATION IN THE FREEDOM OF INFORMATION ACT, SO AS TO INCLUDE LAW ENFORCEMENT VEHICLE MOUNTED VIDEO AND AUDIO RECORDINGS, AND TO PROVIDE THAT LAW ENFORCEMENT MAY APPLY FOR INJUNCTIVE RELIEF FROM THE CIRCUIT COURT IF THERE IS CLEAR AND CONVINCING EVIDENCE OF SPECIFIC HARM FROM THE RELEASE OF THE RECORDING; TO AMEND SECTION 304100, RELATING TO EQUITABLE REMEDIES AVAILABLE UNDER THE FREEDOM OF INFORMATION ACT, SO AS TO REVISE THE AVAILABLE REMEDIES; TO AMEND SECTION 304110, RELATING TO PENALTIES FOR VIOLATIONS OF THE FREEDOM OF INFORMATION ACT, SO AS TO REMOVE CRIMINAL PENALTIES, TO VEST EXCLUSIVE JURISDICTION OVER CASES ARISING FROM REQUESTS FOR RECORDS AND EXEMPTIONS FROM DISCLOSURE, TO PROVIDE EXCEPTIONS TO THIS JURISDICTION, TO PROVIDE RELATED PROCEDURES FOR PERSONS ALLEGING VIOLATIONS, TO PROVIDE REVISED REMEDIES AND RELIEF AVAILABLE FOR VIOLATIONS, AND TO PROVIDE A PROCESS FOR APPEALS; TO AMEND SECTION 30250, RELATING TO THE PROHIBITION ON OBTAINING PERSONAL INFORMATION FROM A STATE AGENCY FOR COMMERCIAL SOLICITATION, SO AS TO EXTEND THE PROHIBITION TO INFORMATION OBTAINED FROM LOCAL GOVERNMENTS AND POLITICAL SUBDIVISIONS OF THE STATE; AND TO PROVIDE THAT THESE MEASURES TAKE EFFECT OCTOBER 1, 2017.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION1.Article 5, Chapter 23, Title 1 of the 1976 Code is amended by adding:

“Section 123665.(A)There is created within the Administrative Law Court the Office of Freedom of Information Act Review. The Chief Judge of the Administrative Law Court shall serve as the Director of the Office of Freedom of Information Act Review. The hearing officers and staff must be appointed, hired, contracted, and supervised by the chief judge of the court, shall exercise their adjudicatory functions, duties, and responsibilities under the auspices of the Administrative Law Court as directed by the chief judge, and shall perform other functions and duties prescribed by the chief judge of the court. All employees of the office shall serve at the discretion of the chief judge. The chief judge is solely responsible for the administration of the office, the assignment of cases, and the administrative duties and responsibilities of the hearing officers and staff. Notwithstanding another provision of law, the chief judge also has the authority to promulgate rules governing practice and procedures before the Office of Freedom of Information Act Review. These rules are subject to review as are the rules of procedure promulgated by the Supreme Court pursuant to Article V of the South Carolina Constitution, 1895.

(B)Notwithstanding another provision of law, the hearing officers shall conduct hearings in accordance with Chapter 23, Title 1, the Administrative Procedures Act, and the rules of procedure for the Office of Freedom of Information Act Review, at suitable locations as determined by the chief judge.

(C)The hearing officers are bound by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules. The sole grounds for discipline and sanctions for hearing officers are those contained in the Code of Judicial Conduct in Rule 502, Rule 7 of the South Carolina Appellate Court Rules. The Commission on Judicial Conduct, under the authority of the Supreme Court, shall handle complaints against hearing officers for possible violations of the Code of Judicial Conduct in the same manner as complaints against other judges. Notwithstanding another provision of law, an administrative law judge or hearing officer, and the judge’s or hearing officer’s spouse or guest, may accept an invitation to, and attend, a judicialrelated or barrelated function, or an activity devoted to the improvement of the law, the legal system, or the administration of justice.

(D)Appeals from decisions of the hearing officers must be filed with the Administrative Law Court pursuant to the court’s appellate rules of procedure. Recordings of all hearings must be made part of the record on appeal, along with all evidence introduced at hearings, and copies will be provided to parties to those appeals at no charge. The chief judge may not hear appeals from these decisions.

(E)A hearing officer shall issue an order containing findings of fact and conclusions of law. If a hearing officer determines that records are not subject to disclosure, the determination constitutes a finding of good faith on the part of the public body or public official, and acts as a complete bar against the award of attorney’s fees or other costs to the prevailing party should the hearing officer’s determination be reversed on appeal. If a hearing officer determines that a record is subject to disclosure, the order must set forth in writing what information must be disclosed and when that disclosure must occur. If the decision of the hearing officer is not timely appealed to the Administrative Law Court, a prevailing party may apply to the Administrative Law Court to enforce the determination. If the decision is appealed to the Administrative Law Court, and the administrative law judge upholds a decision ordering disclosure of information, the administrative law judge may enforce the hearing officer’s determination as the court considers appropriate. If the administrative law judge rules that the determination must be enforced, the court may hold a person, the responsible officer, or the public official of a public body in civil contempt for failing to comply with the provisions of Section 30430 or an order of the court relating to Section 30430. The administrative law judge also may award attorney’s fees pursuant to Section 304110.

(F)This section does not apply to data from a video or audio recording made by a law enforcement vehicle mounted recording device or dashboard camera.”

SECTION2.Section 123500 of the 1976 Code, as last amended by Act 202 of 2004, is further amended to read:

“Section 123500.There is created the South Carolina Administrative Law Court, which is an agency and a court of record within the executive branch of the government of this State. The court shall consist of a total of six administrative law judges. The administrative law judges shall be part of the state employees retirement system. For purposes of Chapter 13, Title 8, the Administrative Law Court, including the Office of Freedom of Information Act, is considered part of the unified judicial system.”

SECTION3.Section 30430 of the 1976 Code is amended to read:

“Section 30430.(a)(A)(1)AnyA person has a right to inspect or, copy, or receive an electronic transmission of anypublic record of a public body, except as otherwise provided by Section 30440, in accordance with reasonable rules concerning time and place of access. This right does not extend to individuals serving a sentence of imprisonment in a state or county correctional facility in this State, in another state, or in a federal correctional facility; however, this may not be construed to prevent those individuals from exercising their constitutionally protected rights, including, but not limited to, their right to call for evidence in their favor in a criminal prosecution under the South Carolina Rules of Criminal Procedure.

(2)A public body is not required to create an electronic version of a public record when one does not exist to fulfill a records request.

(b)(B)The public body may establish and collect fees not to exceed the actual cost of searching for or making copies of recordsas provided for in this section. The public body may establish and collect reasonable fees not to exceed the actual cost of the search, retrieval, and redaction of records. The public body shall develop a fee schedule to be posted online. The fee for the search, retrieval, or redaction of records shall not exceed the prorated hourly salary of the lowest paid employee who, in the reasonable discretion of the custodian of the records, has the necessary skill and training to perform the request. Fees charged by a public body must be uniform for copies of the same record or document and may not exceed the prevailing commercial rate for the producing of copies. Copy charges may not apply to records that are transmitted in an electronic format. If records are not in electronic format and the public body agrees to produce them in electronic format, the public body may charge for the staff time required to transfer the documents to electronic format. However, members of the General Assembly may receive copies of records or documents at no charge from public bodies when their request relates to their legislative duties. The records must be furnished at the lowest possible cost to the person requesting the records. Records must be provided in a form that is both convenient and practical for use by the person requesting copies of the records concerned, if it is equally convenient for the public body to provide the records in this form. Documents may be furnished when appropriate without charge or at a reduced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public. Fees may not be charged for examination and review to determine if the documents are subject to disclosure. Nothing in this chapter prevents the custodian of the public records from charging a reasonable hourly rate for making records available to the public nor requiring a reasonable deposit of these costs before searching for or making copies of the recordsA deposit not to exceed twentyfive percent of the total reasonably anticipated cost for reproduction of the records may be required prior to the public body searching for or making copies of records.

(c)(C)Each public body, upon written request for records made under this chapter, shall within fifteenten days (excepting Saturdays, Sundays, and legal public holidays) of the receipt of any suchthe request, notify the person making suchthe request of its determination and the reasons therefor.for it; provided, however, that if the record is more than twentyfour months old at the date the request is made, the public body has twenty days (excepting Saturdays, Sundays, and legal public holidays) of the receipt to make this notification. Such aThis determination shallmust constitute the final opinion of the public body as to the public availability of the requested public record and, if, however, the determination is not required to include a final decision or express an opinion as to whether specific portions of the documents or information may be subject to redaction according to exemptions provided for by Section 30440 or other state or federal laws. If the request is granted, the record must be furnished or made available for inspection or copying no later than thirty calendar days from the date on which the final determination was provided, unless the records are more than twentyfour months old, in which case the public body has no later than thirtyfive calendar days from the date on which the final determination was provided. If a deposit as provided in subsection (B) is required by the public body, the record must be furnished or made available for inspection or copying no later than thirty calendar days from the date on which the deposit is received, unless the records are more than twentyfour months old, in which case the public body has no later than thirtyfive calendar days from the date on which the deposit was received to fulfill the request. If written notification of the determination of the public body as to the availability of the requested public record is neither mailed, electronically transmitted, nor personally delivered to the person requesting the document within the fifteen days allowed herein,time set forth by this section, the request must be considered approved as to nonexempt records or information. Exemptions from disclosure as set forth in Section 30440 or by other state or federal laws are not waived by the public body’s failure to respond as set forth in this subsection. The various response, determination, and production deadlines provided by this subsection are subject to extension by written mutual agreement of the public body and the requesting party at issue, and this agreement shall not be unreasonably withheld.

(d)(D)The following records of a public body must be made available for public inspection and copying during the hours of operations of the public body, unless the record is exempt pursuant to Section 30440 or other state or federal laws, without the requestor being required to make a written request to inspect or copy the records when the requestor appears in person:

(1)minutes of the meetings of the public body for the preceding six months;

(2)all reports identified in Section 30450(A)(8) for at least the fourteenday period before the current day; and

(3)documents identifying persons confined in anyajail, detention center, or prison for the preceding three months; and

(4)all documents produced by the public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding sixmonth period.

(E)A public body that places the records in a form that is both convenient and practical for use on a publicly available Internet website is deemed to be in compliance with the provisions of subsection (D), provided that the public body also shall produce documents pursuant to this section upon request.”

SECTION4.Section 30440(a)(2) and (3) of the 1976 Code is amended to read:

“(2)Information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy. Information of a personal nature shall include, but not be limited to, information as to gross receipts contained in applications for business licensesand,information relating to public records which include the name, address, and telephone number or other such information of an individual or individuals who are handicapped or disabled when the information is requested for persontoperson commercial solicitation of handicapped persons solely by virtue of their handicap, and any audio recording of the final statements of a dying victim in a call to 911 emergency services. Any audio of the victim’s statements must be redacted prior to the release of the recording unless the privacy interest is waived by the victim’s next of kin. This provision must not be interpreted to restrict access by the public and press to information contained in public records.

(3)Records of law enforcement and public safety agencies not otherwise available by state and federal law that were compiled in the process of detecting and investigating crime if the disclosure of the information would harm the agency by:

(A)disclosing identity of informants not otherwise known;

(B)the premature release of information to be used in a prospective law enforcement action;

(C)disclosing investigatory techniques not otherwise known outside the government;